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NATIONAL ASSEMBLY HANSARD 13 JUNE 2017 43-68
PARLIAMENT OF ZIMBABWE
Tuesday, 13th June, 2017
The National Assembly met at a Quarter-past Two o’clock p.m.
(THE HON. SPEAKER in the Chair)
ANNOUNCEMENTS BY THE HON. SPEAKER
NON-ADVERSE REPORTS FROM THE PARLIAMENTARY
THE HON. SPEAKER: I have to inform the House that I have received Non-Adverse Reports from the Parliamentary Legal Committee on Statutory Instrument Numbers 55, 56, 57, 58, 59, 60, 61, 62, 63, 64, 65, 66, 67, 68 and 69 published in the Gazette during the month of May 2017.
REGISTRATION FOR ICT TRAINING
THE HON. SPEAKER: I also wish to advise members of the
Zimbabwe Women’s Parliamentary Caucus who have not yet been trained in Information Communication Technology (ICT) to register with ZWPC Secretariat Office by Thursday, 15 June, 2017.
BUSINESS OF THE HOUSE
HON. MATUKE: Mr. Speaker Sir, I move that Orders of the
Day, Numbers 1 to 9 be stood over until the rest of the Orders of the Day on today’s Order Paper have been disposed of.
HON. GONESE: I second.
Motion put and agreed to.
SECOND REPORT OF THE PUBLIC ACCOUNTS COMMITTEE ON
THE FINDINGS OF THE AUDITOR GENERAL ON THE 2010 AND
2011 ACCOUNTS FOR THE BULAWAYO CITY COUNCIL
HON. MPARIWA: I move the motion standing in my name that this House adopts the Second Report of the Public Accounts Committee on the findings of the Auditor General on the 2010 and 2011 Accounts for the Bulawayo City Council (S. C. 1, 2017).
HON. CROSS: I second.
The Committee on Public Accounts examined the 2010 and 2011 accounts for the Bulawayo City Council, the first ever accounts of a local authority to be examined by the Committee. Section 309 (2) (a) of the Constitution which came into force in 2013, brought the auditing of all public entities including all provincial, metropolitan, and local authorities under the ambit of the Auditor-General. Previously, local authorities were audited by UDCORP.
In terms of reporting, all metropolitan and local authorities were reporting using the Council Fund Accounting Framework as prescribed by the Urban Councils Act [Chapter 20:15] and the Rural District Councils Act [Chapter 29:13]. The Committee points out from the onset that this reporting framework is now out of context in terms international best practices. The world over, public entities have moved towards the International Public Sector Accounting Standards (IPSAS) which is also the financial reporting framework provided for in Section 37 of the Public Finance Management Act [Chapter 22:19]. Fund accounting does not adequately present the financial wellness of the Council which information is useful to managers, key stakeholders and the public in general. This calls for the urgent need to review the legal frameworks and bring them in line with the PFMA.
Of great concern to the Committee was the huge backlog by
Council with regards to the production of financial statements for audit.
In 2014, the Auditor General was auditing the 2010 and 2011 Bulawayo City Council accounts. By all accounting standards, reporting on these accounts will not be of much value. All the same, the Committee resolved to examine the Bulawayo City on the 2010 and 2011 accounts as a wakeup call on their part and also because some of the issues were yet to be resolved. The Committee expressed its appreciation to the City of Bulawayo that after their appearance before the Committee, the officials have taken action and resolved most of the observations made during audit.
2.0 OBJECTIVES OF THE ENQUIRY
Section 299 of the Constitution of Zimbabwe Amendment No. 20 of 2013 states as follows:
(1) Parliament must monitor and oversee expenditure by the
State and all Commissions and institutions and agencies of Government at every level, including statutory bodies, government controlled entities, provincial and metropolitan councils and local authorities, in order to ensure that-
- All revenue is accounted for;
- All expenditure has been properly incurred; and
- Any limits and conditions on appropriations have been observed.
Section 309 (2) (a) of the Constitution provides for the functions of the Auditor-General as follows:
“to audit the accounts, financial systems and financial management of all departments, institutions and agencies of government, all provincial and metropolitan councils and all local authorities”.
National Assembly Standing Order No. 16 provides for the Public Accounts Committee to examine the sums granted by Parliament to meet public expenditure and such other accounts laid before the National Assembly.
It is within this context that the Committee examined the 2010 and
2011 accounts for the Bulawayo City Council as reported by the Auditor General in the 2014 Annual Audit Report on Local Authorities.
The Committee held a training workshop on the analysis of audit reports of local authorities which was facilitated by Ralph Bomment Greenacre and Reynolds and with the support from the African
Development Bank (AfDB). Given that before the enactment of the new
Constitution in 2013, local authorities were outside the purview of the Auditor General and their accounts were not subjected to Parliamentary oversight, the training workshop was critical to familiarise Members of PAC with the accounting environment for local authorities and also the reporting frameworks. The workshop was held in August 2016.
The training workshop was preceded by the oral evidence session which was held in Bulawayo on 22 August 2016. This is the first time Council officials had interfaced with the Committee and the kind of questioning they were subjected to, was an awakening call that it was no longer business as usual. The Council submitted further written submissions whilst the Committee was in Bulawayo. This Report is therefore an outcome of the Committee’s analysis of the oral and written submissions and as highlighted earlier on, Council had since taken corrective action on most of the issues raised in the audits.
4.0 FINDINGS AND OBSERVATIONS BY THE
4.1 Absence of Supporting Documents for Industrial
Attachment Expenses (2009)
The audit observed on the 2009 accounts that Industrial attachment expenses amounting to $3 781 were paid without any supporting documentation. In the absence of such documentation, there was no assurance that the payments were a proper charge against Council funds and fraudulent activities and unauthorised expenditure may occur and remain undetected.
The Finance Director informed the Committee that departments used to hire students on attachment on their own and would keep records and just submit names for payment. As a result, records could not be immediately availed when requested especially that the audit was taking place years later. To curb recurrences, they have centralised industrial attachment engagements within the Human Resources Department.
Subsequent to the hearing, Council submitted vouchers supported by memoranda of agreements in respect of attachments as supporting documents. The supporting documents have been recomputed and they add up to $3 781 and as such, the matter had been satisfactorily resolved.
4.2 Unreconciled differences of $486 986 and $104 486 for
Kingdom Bank. - 2010
The Audit observed on the Bank reconciliation statements that reconciliations for significant balances of $486 986 and $104 486 for the Kingdom Bank general expenses and salaries account respectively were not carried out. The Acting Town Clerk informed the Committee that some of the funds were embezzled by a clerk who had since resigned from the service of the Council after the matter was discovered. The matter was handled through the courts and Council was in the process of recovering the embezzled funds.
The Finance Director informed the Committee that apart from the embezzled funds, all the outstanding amounts were reconciled. After the hearing, Council availed supporting documentation which showed that the figures were reconciled and as such, the matter has been resolved.
4.3 Failure to perform monthly reconciliations between payroll summaries and the general ledger in 2010 and 2011
The Council failed to perform monthly reconciliations between the payroll summaries and the general ledger, resulting in variances of $345 236 and $963 108 in 2010 and 2011 respectively. The Council highlighted to the Committee that it would run the payroll in the system but payments would be made later. For instance, it would run a payroll in August and may be pay in October. Meanwhile, circumstances would have changed such that what was run in the system varies from what was eventually paid out, hence the variances. These variances would occur because the Council was not doing the reconciliations on a monthly basis as is the standard.
The Committee noted with concern that there was laxity on the part of management. Officers responsible for monthly reconciliations were not being adequately supervised. Council indicated that the variance was investigated and resolved after the matter was raised by audit. Supporting documentation was availed after the meeting and the matter has therefore been resolved. The Acting Town Clerk assured the Committee that monthly reconciliations were being done and that the matter would not recur in future.
4.4 Purchase of Ambulances and Vehicle trackers, 2010
A tender was awarded to a local supplier for the supply of ambulances amounting to $205 106 during the year ended December 31, 2010. The supplier was paid in advance. As at December 31, 2013, the ambulances in question had not been received. In addition, vehicle trackers amounting to $100 000 were paid for in advance and had not been delivered to Council at the time of audit in 2014.
The Acting Town Clerk informed the Committee that the contract with the supplier, Axis Medical Corporation Limited, was for four (4) ambulances and was done through a Municipality Procurement Board. Most suppliers at that time were requesting for advance payment since they did not have capital and half of the amount which is the amount in question was paid. The supplier disappeared and the Council pursued the matter in the Courts and got a judgment under case No. HC231/2011 to recover the actual amount from the supplier. Efforts to execute the judgment were fruitless after they found the offices in Harare deserted and engagement of trackers did not yield any results.
Regarding vehicle trackers, they awarded the contract and they paid an advance against a bank guarantee. However, the supplier disappeared and they pursued the case in the civil courts and they again had the judgement but the supplier, Trackat, also from Harare had as well vanished. The City did not call on the bank guarantee until the period expired. The procurement policy allows them to pay in advance for bank guaranteed purchases.
Again, the Committee noted with concern the level of maladministration in the City of Bulawayo demonstrated by failure by officials to follow up a Bank guarantee until it expired. This was a recourse, in respect of Track at Company, a supplier of vehicle trackers who was paid and eventually failed to deliver the goods.
4.4.1 The Committee recommended that by 30 March, 2017, the Council should institute disciplinary action against the officials responsible for the transactions for negligent of duty.
4.5 Cash reconciliations, 2010
The Audit observed that the cash account on the general ledger was not being reconciled to the physical cash in the vault. This resulted in a variance of $1 238 818 between the general ledger and physical cash balance. The revenue hall bank statement, which should have been the only control around the physical cash receipts and reconciliation process, was not updated timeously. On further enquiry, management updated the revenue hall bank statement to a balance of $39.
Council indicated that they had since disbanded the vault and all payments are being done through the banking system. It indicated that the variance was also investigated and cleared.
4.6 Supporting documentation, 2010 and 2011
Auditors were not provided with expenditure supporting documents for repairs and maintenance and general expenses amounting to $151 504 and $179 396 respectively. Under such an environment, funds could be misappropriated without the system detecting.
Council officials admitted that there was a problem of poor records keeping and as a result, some records were lost. This was compounded by doing audits out of time as key information was lost along the way. They indicated that documentation is also requested by other authorities such as ZIMRA and in some instances they are not then followed up. As corrective action, they now request two copies of invoices from service providers. They have also purchased scanners for all key points such that invoices and other documents supporting payments are scanned and stored in the system. Furthermore, the Finance section had been instructed to maintain both a manual and electronic register of all documents to keep track of financial records.
The Committee expressed concern on the extent of poor record keeping exhibited in the Bulawayo Council. Given that they were behind in auditing their books, there was therefore a greater need for proper record keeping to ensure that such documents are in place whenever they are required for audit purposes. The PFMA is very clear that such documentation should be availed to the auditors whenever they are requested. This kind of behaviour by Council officials points to weaknesses in terms of the PFMA when it comes to penalties for failure to avail information for audit. There are no clear consequences for failure to avail such audit evidence.
4.6.1 The Committee recommends that by 30 April 2017, Treasury should spell out in regulations, stiffer penalties for Finance directors who fail to avail information for audit purposes.
4.7 Disciplinary procedure, 2010 and 2011
The Audit observed that Council funds estimated to $76 000 were embezzled by an assistant accountant. The accused employee was dismissed and signed an agreement to repay the embezzled amount effectively treating the embezzlement like a loan.
There was no evidence that proper legal proceedings were followed to ensure that the perpetrator was apprehended by law as charges were withdrawn after the repayment agreement was signed. This undermines the importance of organisational ethics in the eyes of employees.
The Acting Clerk informed the Committee that Council instituted both criminal and civil proceedings at the advice of the Chamber Secretary. She indicated that after the matter was unearthed, the officer concerned immediately resigned from the service of Council to escape dismissal. Council proceeded to the Civil Court to sue her for the recovery of the outstanding amounts. She pointed out that it was case Number HC1705 of 2012 and they got judgment in the sum of $43 833.87 against the staff member. The matter was unearthed by internal audit.
In terms of recovering the embezzled funds, the Committee was informed that the officer ceded her Local Authorities Pension Fund
(LAPF) benefits to the Council but unfortunately LAPF is also not up to date in payments. It has however confirmed to Council that it would pay when funds become available as the officer had total benefits amounting to $69 000. She also ceded her Old Mutual amount because she had an investment with Old Mutual as well, to the tune of $17 000.00. Regarding the criminal proceedings, the Committee was informed that the case was reported at the CID Fraud Section and thereafter, several trial dates were set up until the Council lost track of the matter. Initially she was put in remand and then released. Council was advised that they would proceed by way of summons. Since then, there was no progress on the matter.
The Committee noted with concern that the criminal side of the matter has not been pursued with much vigour and this might actually encourage other officials to swindle public funds.
4.7.1 The Committee recommends that Council should with immediate effect vigorously pursue the criminal case and ensure that the culprit is brought to book. This would deter others in future.
4.8 General Observation
4.8.1 The Committee is of the view that with fully integrated financial system, it is possible in the modern world to produce accounts at the click of a button. If Council transactions are done through such a system as opposed to manual processes, a lot of irregularities highlighted in the 2010 and 2011 accounts could be avoided.
18.104.22.168The Committee recommends, the Auditor General in the current year audits, to audit the system being used by the local authority. This will enable the Committee to make informed recommendations regarding the system being used by the local authority.
22.214.171.124Treasury should, by 30 June 2017, give guidance on the migration of local authorities from the current fund accounting reporting framework stipulated by Urban Councils Act to International Public Sector Accounting Standard (IPSAS) which is the generally acceptable standard stipulated by the PFMA.
126.96.36.199 Treasury should also, by end of the first quarter of 2017, puts in motion the process of aligning the Urban Councils Act and the Rural District Councils Act to the PFMA and the Constitution.
The Committee is pleased to note that by the time of concluding the enquiry on the Bulawayo City Council 2010 and 2011 accounts, the City had taken corrective action on most of the issues that were raised during the Audit. This is an indication that it is within their capacity to avoid the irregularities observed, by ensuring that they produce unqualified accounts. The Committee, therefore, concluded that there is a culture of non-performance embedded in the local authority since there are no consequences for non-performing. Audit is also not taken seriously in the local authority since again there are no consequences for issues raised in audits or even missing deadlines for submission of accounts for audits. The Committee recommends that the Council should be proactive in its day to day administration of Council funds to curb recurrences of observations in future. Production of accounts within the stipulated time frame and the quality of audits should be part of the performance contract for the Finance Director in Council. Failure in that regard, the employment contract should be revisited. I thank you. HON. CROSS: Thank you very much Mr. Speaker Sir for
affording me this opportunity to contribute to this debate to follow up my Chairperson presentation this afternoon.
The first observation I would make is that, to look at a set of accounts which is six years old is largely irrelevant because things have changed so much in the intermediate years. Nevertheless, this is a very good start in terms of bringing the situation in local authorities under the control of Central Government. I think that the job that the AuditorGeneral is doing in the local authorities is exceptional. In a very short space of time, she has been able to get on top of the whole exercise and has started to bring the standard of auditing and accounting in all local authorities up to some kind of an agreed standard.
What happened previous to her intervention, I do not know but certainly in the Public Accounts Committee we have seen a considerable improvement. The question of the importance of local authorities is underestimated in Government. The truth is that Parliament does not deliver roads, health, welfare and education services to the people. We do not repair roads, it is the local authorities that do that. I think that we have to pay much more attention to local authorities in the future and perhaps this is a good start. The problems of local authorities are mainly financial with 40% of the revenue of Bulawayo City Council coming from sales of water and about 50% from rates.
One other thing that is not covered in our report but which we noted during our visit to Bulawayo is the fact that on the rates side, the
Bulawayo City Council has been able to increase the coverage of rates in Bulawayo to 100%. In other words, all homes, buildings and property in Bulawayo are now properly rated. This has resulted in this year, under today’s conditions, on a substantial increase in rates income. I think this is a significant achievement when other local authorities are reporting significant decline in income. In fact, Bulawayo City Council this year, in the circumstances under which we are operating, has seen a significant increase in rates income.
The second problem is the question of water management. Bulawayo City Council has a very long history of good management of water. Even so, Mr. Speaker Sir, more than 40% of the clean water reaching Bulawayo’s residents is in fact being wasted through leakages of one kind or another. Gradually, this situation is being brought under control by a system in Bulawayo which other local authorities, should implement.
There is continuing problem of raw water supplies in Bulawayo; we have not built a new dam for Bulawayo for more than 20 years. Historically, Bulawayo City Council has had the responsibility for its own bulk water supplies and this was not the responsibility of ZINWA under this regime, the city built a dam roughly every five years. The five dams which supply Bulawayo City Council were constructed by the
This situation means that Bulawayo is always in a situation of water insecurity and I think this is a matter we have talked about in ad nauseum Government for too long, it is time this matter was given attention. As far as the council is concerned; they reported to us that they saw the future in Bulawayo as being in the various aquifers to the north of the City, already supplying the city with about 15% of its consumption and they think that ultimately the aquifers could provide more than 60%.
Then there is the question of staffing and salaries; Mr. Speaker, it was extremely encouraging to see that Bulawayo City Council is only spending 40% of its revenue on salaries compared to over 100% of Central Government and in Harare 70%. They are the only City Council in the country which is close to observing the required 30% on salaries and 70% on services. This has been achieved largely through the efforts of the council itself. The Town Clerk in Bulawayo, for example, receives about US$7 500 a month compared to Harare where the Town Clerk was thirty over several thousand dollars a month. Harare City Council has a problem in the sense that their salary scales are completely out of kilter with the realities on the ground. Bulawayo City Council is more or less in compliance and therefore they are relatively up to date with their salaries and other payments.
I must say we were very impressed with the Acting Clerk in
Bulawayo; she has now been replaced with a permanent Town Clerk. She and her staff really did an excellent job in presentation and seem to be on top of their responsibilities. Two issues really concerned us; first the question of prepayments to contractors who did not deliver the products for which they were contracted. This shows a fundamental weakness in procurement policies and principles. I hope that with the new procurement policies which is now being implemented, these will be corrected but it represents a complete loss of revenues to the City Council of significant fund.
The second major concern is the question of not taking disciplinary action in time against delinquent members of staff. If a member of staff steals US$76 000 from you, they should be in jail within a week – [HON. MEMBERS: Hear, hear.] – There should be no hesitation on the part of the authorities to take action. Even if the individual concerned has accepted responsibility and agrees to pay back, if they are involved in criminal activities on this scale, they should be punished for it. I must say in that respect, we found the Bulawayo City Council delinquent.
I hope now, Mr. Speaker, given the fact that they have been subject to a public hearing with the Committee that this sort of practice will not recur in future. I thank you Mr. Speaker Sir.
*HON. MAPIKI: Thank you Mr. Speaker. First and foremost, I would want to thank the Committee chaired by Hon. Mpariwa for the report that the Committee is tabling on the state of affairs in the Bulawayo City Council. The major issue was that the majority of the people that were employed by Bulawayo City Council were in a non substantive capacity and the majority of them did not have the relevant qualifications. The majority of them pretended not to be knowledgeable so that they could use that as an excuse to steal money to such an extent that if you were to ask one how they accounted for these monies, they knew the money was stolen. We then went to look at their academic and professional qualifications, there was no such indication in their records. We believe that this occurred during the GNU period when the majority of the people were employed on trial, either on nepotism – [HON.
MEMBERS: Inaudible interjections.] -
Mr. Speaker Sir, the books of accounts, if we were to seriously consider why there were no monthly reconciliations, you could see that the balance in the bank and what was on books did not tally. There were no proper accounting systems followed. This was used as an excuse for stealing funds and they laid the blame on the person whom they then claimed dead or whom they knew is no longer with the council. No one was arrested by the police. There was no evidence as to what then happened after the person had been arrested by the police. There was no evidence of any disciplinary action taken against the employee even if the employee was in a position to refund the money; no such steps were taken to recover such monies.
Bulawayo City Council did not have an asset register, which meant that they did not know what they were accruing in the form of rents, what type of buildings they have and what funding or income was being derived from such properties. That led to a weakness whereby a duplication of books of accounts could be done where people could be using a second book to steal money.
If you look at the issue of the supply or purchase of an ambulance, there are certain briefcase companies that were awarded the tender to supply the ambulance. Such issues caused a lot of revenue loss to the City Council because the person did not have a tenure address and they did not know where that person was resident. What surprises me is that there are big companies in Bulawayo which are capable of supplying motor vehicles. A person that was awarded a tender is Harare based. His address is unknown, despite the fact that there are decent companies in Bulawayo that could have supplied that tender. I earlier on said that there are people who pretend to be silly so as to ensure they steal money.
Council audits take a lot of time to then correct a lot of the imbalances in the city councils. Those are 2010 accounts and in 2017 we are now debating the issue. Others would have lost the job or died because of AIDS. So it becomes difficult for them to be traced and arrested. What also showed us that things were not well is that we observed that despite councils making a lot of money from beer halls, like Harare City Council; at the time when we grew up in the Magaba and Mapitikoti areas of Mbare, councils used to make a lot of money. A lot of councils that have people with Masters Degrees are now renting out these beer halls; it shows a failure by the council employees.
It is also true that a lot of people who are renting these beer halls are making a lot of money by sub-letting, when they will be leasing at a nominal fee. As a result the council is deprived of income. The money that is supposed to benefit the council ends in the pockets of an individual. By so doing it cripples the income generating capacity of the city councils. This is the corruption that we saw in most cases in
Bulawayo City Council. A person who could not account for $76 000, that person is a seasoned thief. If these people are allowed to repay in installments without interest, it would show that those ‘big fish’ who were not arrested were also part and parcel of this corruption. People were actually set free because of their totem for instance the Museyamwas, the eland tribe, were set free.
This was prevalent in Bulawayo. It is a tip of the iceberg in terms of corruption. Corruption is rife in city councils. In Chitungwiza and other areas, we found out that the leader or the Head of the council does not even have an Ordinary Level or Junior Certificate, but without even Grade Seven, they were awarded a job. Even if they passed Grade Seven, they would have two qualifications, the birth certificate and the house rental. As a result, the country will not progress. Mr. Speaker, I thank you for granting me this opportunity to add my views on this motion.
HON. CHASI: Thank you very much Mr. Speaker. I would like to first of all commend the Committee for a very detailed report and also to thank the Auditor General’s department. I think it is one of our star performers in Government and a department that helps us in our oversight function.
Firstly, I think we need to empower the Auditor General’s department, if we are going to effectively carry out our oversight function. The fact that we are actually looking at 2010/2014 figures, I think attests to what I am saying. Some of the employees that we are looking at or talking about at the moment have either retired, are deceased, have been dismissed or have simply resigned. So, to some of them there is no truth in saying mhosva haiwori. Inowora because they have left, you cannot locate them. They have stolen and some of the companies who were paid in advance cannot be located. So mhosva yacho yatorova zveshuwa, they will not be found. They have gone away with a lot of money.
Mr. Speaker, Bulawayo City Council traditionally is one of our best run councils in this country. Some of the things that have been happening there, that we have heard from the report are quite disconcerting. However, it is quite pleasing to learn that council officials have responded positively to some of the criticisms that have been leveled against them. I would like to suggest that in terms of alignment, the Committee has suggested that there is an urgent need that the Local Authorities Legislation be quickly brought into alignment with the Public Finance Management Act, given some of the shortcomings that have been experienced in terms of the management of local authorities.
Maybe this is a matter that needs to be brought to the attention of the Minister of Finance and Economic Development, given the shortcomings that have been mentioned here.
The unreconciled amounts, I think appear to be considerably significant. It is however quite pleasing to note that the recoveries appear to have been made but it is also shocking that council seems to have taken a somewhat lackluster position concerning its attitude towards those that have stolen money from council, in terms of reporting matters to police or taking legal action against them. It is probably necessary that they be banned from making advance payments and one cannot fail to suggest that maybe there was collusion between council officials and those companies to whom advance payments were made.
In conclusion, the Auditor General must be commended for the great work that she is doing and that Government probably needs to give the department more resources in terms of personnel and maybe vehicles, so that Parliament and Government in its generality can be empowered in order to oversee Government departments. I thank you.
THE HON. SPEAKER: Order, just to inform Hon. Members that the report presented by Hon. Mpariwa has been put into your pigeon holes so that you can refresh your minds before coming to debate tomorrow and Thursday.
HON. SANSOLE: Thank you Mr. Speaker. I would like to point out, first of all that the audit of Bulawayo City Council was conducted about three to five years after the end of the financial years in question. The auditors actually found that most of the issues raised have been rectified at the time of audit. From experience, I found the audits to fall into two categories; the difficult audits and the pleasurable audits. I think the auditors must have found the Bulawayo City Council audit to be a pleasurable audit because they took corrective action when things went wrong. If you look at the major recommendations, you will find that they have to do with first of all, use of ICT systems, realigning legislation - that is the Urban Councils Act, the Rural District Councils Act to bring it in line with the Public Finance Management Act. They have to do with migrating from fund accounting to International Public Sector Accounting Standards (IPSAS).
Basically, they are recommending that council migrates to a more modern system that properly accounts for assets. The major shortcoming of fund accounting is that fixed assets are written off in the year of purchase. They are not properly accounted for and do not properly reflect at the true value in the financial statements. That is the major recommendation and that applies across all local authorities. All local authorities in the country use fund accounting and they are migrating to IPSAS. You cannot pin that as a shortcoming on the part of the Bulawayo City Council.
The absence of supporting documentation is a common occurrence in most local authorities. Without supporting documentation, it is impossible to verify that expenditure that is shown in financial statements is correct and that expenditure has been properly accounted for. The absence of documents to support revenue makes it difficult for auditors to verify that all revenue has been properly accounted for as required in terms of the Constitution. In the case of the Bulawayo City Council, most of the expenditure documents were eventually traced and located.
The only major shortcoming that we found was the situation where they paid for ambulances in advance and they paid for vehicle trackers in advance. At the time, it was a requirement by most suppliers to demand payment in advance. It brings to light the need for local procurement, because they were dealing with companies that were in Harare and they could not trace them afterwards. They could not be found at the addresses that they gave. If they had used a local supplier to source those vehicles, they would not have had that problem.
The bank reconciliations that were not done at Kingdom Bank were eventually done and the accounts were reconciled. Corrective action was taken for the embezzlement that was done by members of staff, although it is a practice that is not to be encouraged - that when people steal funds, they should be given time to pay back. That amounts to an unauthorised loan. On that score, the Bulawayo City Council was found wanting.
Regarding the use of the vault system, there was need at that time for council to maintain large amounts of cash to enable it to pay, because they were paying using cash. Otherwise that requirement then fell away when it was found that there were better systems of paying using RTGs and so forth, but we all appreciate that we have found ourselves in situations where we have had to make cash payments from our pockets or from businesses where businesses retain cash and use the same cash to pay out. That practice is being discouraged. The differences in the payroll summary were mainly due to timing differences that when payments were made, the variance would arise because of a later payment date.
I would like to say that, generally we found that Bulawayo City Council is better run in terms of financial management than most local authorities in the country. I would like to support the Committee’s recommendations in order to improve the internal control systems of Bulawayo City Council that generally are better than most local authorities. I thank you Mr. Speaker.
HON. MISIHAIRABWI-MUSHONGA: Thank you very much
Mr. Speaker Sir. I will not take too much of the time in debating except to perhaps speak to one main issue. This is one of our first Local Government Reports and what became very clear to us as a Committee is that we should have done this long before - because clearly, the lack of supervision and the lack of oversight on Local Government authorities had created a situation where local authorities did not think that they were answerable to anybody. I must say Mr. Speaker that part of the discussions that we were having with local authorities was to do with what they were using as accounting systems. We felt that this is true of most of the reports that we are going to be bringing here on local authorities. We found that one of the things that we complain about which is not having revenue is not really about not having revenue, it is about lack of systems. Lack of your billing systems and lack of knowing how many households you do have. We were trying to find out as we were speaking that with a proper system, it would be easy for anybody to ask a local authority to say, how many households do we have in Bulawayo and immediately be able to tell how much money you would be able to get.
With a proper billing system, you would have a situation where revenue would be coming in, even the rentals that my colleague Hon. Mapiki was talking about; all those things were a problem, not because of anything else but because of lack of systems. We are happy that our partners that the Committee is working with have indicated that they are going to be working with local authorities to begin to develop those systems. With those systems, we would be better able to manage local authorities.
In terms of Bulawayo Mr. Speaker, the reason why I stood up is merely because of one issue, that is the issue of procurement. Two issues arise on the issue of procurement. The first one is and I do not know why we have a problem with institutions following what is in the Constitution. I know that we brought here a Procurement Bill that is not an Act yet, that will make it much easier for us to push and make sure that local authorities follow systems for procurement. Even before we have that particular Act Mr. Speaker, we have the Constitution that provides for us a framework for which procurement should happen. For example, our Section 18 on Fair Regional Representation, it states, “the State and all institutions and agencies of State and Government at every level must take practical measures to ensure that all local communities have equitable access to resources to promote their development” and of course 264, which is our devolution.
In reality, local authorities do have a framework in which to operate. What we saw about those issues of procurement simply was that no one is following this. The Bulawayo City Council had an option to look for people that could provide the ambulances and all the other things that they procured from Bulawayo, but all the companies that they used were from Harare. Because they were from Harare, they had not done due diligence. By the time they could not be paid, they could not find these people and you are sitting there saying you are a Bulawayo local authority. The resources that you have are coming from local communities. Can somebody explain why for God’s sake you believe that the people that should benefit from those processes should be coming from Harare?
So, as somebody who comes from that region, I sit there and I say, day-in day-out, we are coming to this House Mr. Speaker, to complain about issues of marginalisation and that we are not getting tenders that are being floated at a national level. This is even more upsetting because here is a tender to which a local authority has the obligation or power and authority to make a decision to look for those that are in their local communities, but no, they will come again to Harare. As if that is not enough, you will use standards which are open to manipulation. For example, it is clear that if you are going to give somebody a tender, you will say to them give us a Government guarantee. In the first instance, there was not even a Government guarantee. In the second instance, there was a Government guarantee but they did not even follow to say this is the period to which we should have been paid, let us go and reactivate the Government guarantee. For all intent and purposes, one sits there and says clearly there is collusion.
The reason why you are not looking for people in your own communities is because you actually want to deliberately find people who do not live in those communities so that you can collude in corruption. For some of us, that was the most disappointing issue and I must note that one of the other disappointing issues and this is across local authorities as we deal with them. Your Committee, as it goes out to do these Public Hearings; one would be expecting that your own councillors come to these hearings so that they sit in to hear what their own officials are saying. In Bulawayo, I think we only had the Mayor if my memory saves me right. Councillors did not come. You are the representatives of the people but you do not even come to participate in the processes. So, how are we going to be sure that even as you sit in that council you are doing due diligence to make sure that these things do not happen.
Like I said Mr. Speaker, the reason why I stood up is that day-in day-out, when I am in Bulawayo and I am being stopped in the streets, the complaints are that we are marginalised and resources do not come from here. This was a typical example of people who themselves sit in that local authority and had the authority to do what they were supposed to do but who deliberately decided that they were going to take hard earned resources from their own people, fly them to Harare. This makes some of us very upset. I thank you Mr. Speaker Sir.
+ HON. MLILO: Thank you Mr. Speaker. I want to applaud the
Committee of Public Accounts for the report that they presented which reflects work that was done diligently, especially on things that are happening in urban areas like Bulawayo. When we grew up, Bulawayo was known to be a clean city among all other cities in Zimbabwe. It was a city that was well-known for its leadership which was so committed to what it did. It is disheartening to realise all these things, particularly those that were highlighted in this report. We all know that when you are trying to source a consignment, you have to do comparative schedules and make background checks on the service providers that you want to engage. When you are holding public funds, it is true that you cannot just source service providers without knowing the background of the service provider that you are engaging. This is one thing that brings corruption. You cannot be someone who is employed, especially handling finances and fail to look at such critical issues.
One thing that people who are in public office should take note of is that these are public funds that are supposed to be used wisely. One other thing that has to do with the issue of sourcing for service providers especially by the council is that when you hold meetings as council, this is where discussions on how to handle finances are supposed to take place. I think this is where the problem emanates from.
Why I am saying this Mr. Speaker is that, I realise that all the Hon. Members of Parliament scrutinise policies. It is also important that we cascade the issue of looking at policies to the councils as well so that they can fully understand what it means to hold such offices.
I believe that people like Town Clerks, Director Engineering and Housing, are people who are employed based on their highest qualifications that we know they would have attained. These are the people who should have a reputation in their work history but you realise that, especially with what is happening these days, the councils are the ones who want to know how the technocrats work. This is what is causing all these problems Mr. Speaker Sir, especially those faced by urban areas.
I know that the Government has rules and procedures that are supposed to be followed, especially when sourcing for a tender. It is surprising that in such a beautiful city like Bulawayo, such issues are not considered. These are the works that have brought corruption especially in our country. It is disheartening to note that last year, the City of Bulawayo that we love so much was filled with corruption, which was also revealed in the newspapers. Most of the tenders that are acquired that have to do with any equipment to be used within the city are not done properly.
As Parliament, we should try and come up with proper procedures that have to be followed, especially on acquiring of a tender in cities. At the end of the day, people might think that as Parliament, we are trying to take over what the councils ought to be doing but we will only be trying to correct things, especially those that bring corruption. Some of these people are after things that only benefit them and at the end of the day, they bring their friends as service providers. As a result, we face such situations like what happened and in the end, you fail to find that person who was awarded that tender. Why should we have a situation like the one for Lobengula whereby we failed to know where exactly he went to? It is disheartening to realise that such issues are not followed up properly.
I would like to congratulate the Committee for doing such great work and commend that they carry out such audits almost every year so that we try and fight this corruption, especially when it comes to do with issues of public funds. I have noticed that these days, what the council does is to disconnect water especially to those with arrears, which is something that they are not supposed to be doing. This is because people who are supposed to be paying for the services are no longer paying because they have no trust for council. At the end of the day, they believe that it is better off not to pay than to give to people who will fail to know how to use the funds that they have paid. If only we can have such Committees and when they visit all the cities, they should also try and inform the citizens of that community on what exactly they would have managed to find out in their fact-finding visits. Even in our National Anthem, we state that all the leaders should be of integrity and I know that most of our Members are taking note of this and are learning from what the Committee said that all the leaders should be leaders of integrity. I thank you.
THE HON. SPEAKER: Hon. Members, two weeks ago, you
were saying we should be gender sensitive and I do not see any Hon. female Members rising – where are they. Out of the five Members who have debated, only one lady has debated. So next time, do not accuse the Chair.
HON. NDUNA: Thank you Mr. Speaker for giving me this opportunity to debate on the report by Hon. Mpariwa and Hon. Cross. Mr. Speaker Sir, it is my hope that Hon. Mpariwa and Hon Cross can also pay attention to my debate, aware that they have presented this report which is very crucial and important.
Mr. Speaker Sir, there is an issue that I need first and foremost to touch on. We are all creatures of the Constitution and as a nation, we are viewed by the way we uphold our own Constitution. As it has been said in Section 309 (2) (a) – that the Auditor-General is now taking route in terms of auditing all financials in the urban councils and in all Rural District Councils and this is applauded. Mr. Speaker Sir, I need to bring to your attention and to your awareness that we have just come from a half - day Conference where UNDP was actually churning out their mandate, how they are empowering and how they are solidifying parliamentary processes in order that we avert, avoid and eradicate all forms of corruption and revenue leakages in all other sectors that are accountable to Parliament. It is my fervent hope that UNDP can bolster and also strengthen the office of the Auditor-General to this effect that immediately when the Auditor-General embarks on a fact finding mission and they find flaws and faults in any organisation, immediately, the Committee on Public Accounts and the law enforcement agencies should interrogate the Auditor-General’s report; whoever is found on the wrong side is immediately arrested and incarcerated.
Mr. Speaker Sir, it is also in that view that because of this report that has had so many glaring issues because of an archaic way of dealing with modern day issues, we need to embrace ICT and get out of the BBC mode (Born Before Computers Mode) so that we increase revenue generation and plug revenue leakages. I want to draw parallels to this report and to the modus operandi in Bulawayo to that of Chegutu West and other local authorities. You will find that, because we are not embracing ICT in terms of revenue generation and dealing with our administrative issues using information communication technology which is modern; because we are not going that route Mr. Speaker Sir, we are still fraught with a lot of paper trail and with ubiquitous amount and piles and piles of manual receipting and all that. As Hon. Mapiki alluded to, this is done solely so that there can be ways of circumventing authority and ways of making sure that people pilfer from the coffers of the unsuspecting innocent citizenry which we as local authorities oversight are supposed to be protecting.
Mr. Speaker Sir, I want at this juncture also to applaud the new
Town Clerk of Bulawayo. Aware also that he is coming in from Victoria Falls which is an equally good City which has standards second to none and which are global in nature, as it is embedded with one of the seven wonders of the world; I am hoping Mr. Speaker that he brings to Bulawayo, the global initiatives so that they can embrace the ICT which I believe is also embedded in Victoria Falls.
I also want to give a solution - aware that the budget of 2017/2018 speaks to amongst other things, domestic resource mobilisation, Mr. Speaker Sir, yours truly is the Chairman of the Transport and
Infrastructure Development Committee. I would suggest to the City Council of Bulawayo that they have a lot of good roads which are very spacious, so much elongated, are a beauty and marvel of any other local authority. It is my clarion call to that local authority that they can use some of the monies that are generated from parking fees to plough them back to maintain, rehabilitate and reconstruct their road network which, like I have said, is certainly an envy of a lot of local authorities, including Chegutu. To also add Mr. Speaker, we are also on the path to try and make sure that we emulate what we have seen in Bulawayo City Council to try and get a cure in terms of maintenance of their road network. So for their carriageway markings and lighting, if they can utilise the monies received from billboard advertising, monies taken from parking fees and monies generated from ICT to plough back to their infrastructure development.
Mr. Speaker Sir, as I have said – one does not want to reinvent the wheel. If we can digress and come out of the silo mentality which is the one that is causing local authorities, including Bulawayo City Council, to continue to be moribund in their ways of dealing with the administrative issues; the same Auditor-General came into Chegutu in 2015and found that there were flaws in terms of their administration and revenue collection, generation and upkeep of that revenue because we are still manually related in terms of dealing with financial issues. That is done solely so that the administration of any council can circumvent and continue to put their fingers and their hand and dip them in the cookie jar. Because of this report, we need to make a stand. If we cannot arrest or cause anybody to be arrested immediately because maybe of the prescription period that has expired, the period 2010 to date, which is seven years, Mr. Speaker Sir, at least let us cause the change of mindsets. Let us remove the silo mentality, let us integrate
all systems in order to avert, maybe to completely annihilate that antiquated way of dealing with modern day issues.
Mr. Speaker Sir, the only way that we can send a strong message to would be offenders in the future before the Auditor General has embarked on her fact finding mission and on her reports, the only way we can send a very clear message that this cannot be tolerated in particular where we are supposed to plough back that revenue we have collected from the residents back to service delivery, is by making sure that any report that is found to be flawed, that is pregnant with irregularities, should certainly have the accounting officer face the exit. It is lucky that the previous accounting officer, whose term and tenure was during this 2010 and 2011 audit report, is no longer with the council Mr. Speaker Sir. Otherwise for those that are still in their tenures, they should immediately vacate office so that we have no repeat processes of this delinquent behaviour.
Mr. Speaker Sir, I am also aware that there are people that are in offices who are not qualified to be in those offices. Why are the monies that are received from residents and rate payers not remitted where they are supposed to be? It is because the administrators are not qualified in the manner that they are supposed to be qualified. If they are qualified, the reason they do not raise alarm bells is because either they are naive, they are involved or they are the ones that are in the forefront of this daylight robbery in these local authorities.
Therefore, it should be interrogated because of this report; the issues of qualifications of accounting officers, be they in Rural District Council or be they in the urban councils so that because of this report, it should cause an immediate expulsion and cause an immediate rejuvenation of those positions in order that we have square plugs in square holes, not square plugs in round holes.
Mr. Speaker Sir, as I conclude, it was brought to this House’s attention that a certain percentage of water supply goes down to the rate payers in Bulawayo. In particular, this was brought about by Hon. Cross. In Chegutu where I draw parallels, we should learn from those that are at least giving back to the rate payers in terms of service delivery. There is a ubiquitous amount of water and copious of it, Mr. Speaker Sir, to say the least, but there is no treated water trickling down to the rate payers so that we can avoid and avert the scourge of cholera and typhoid which is termed a primitive disease.
Mr. Speaker Sir, this is not a laughing matter. Even the Bible says,
“the year that King Hosiah died, I saw the Lord”. Today, this report was presented here. Chegutu should be transformed because of this report; Harare should be transformed because of this report. Immediately, what we are going to propose as solutions to Bulawayo should be double where there is no service delivery in places such as Chegutu.
Immediately, I call for the Minister of Local Government, Public Works and National Housing to descend on Chegutu and make sure they work on the 2015 Auditor General’s Report, and expeditiously excavate and remove from the entrenched position of authority of the accounting officers, the CEO in particular or the Town Clerk so that we have a rejuvenated town council we have limited work for the Member of
Parliament in that area, and we have good service delivery to the people of Chegutu who are crying for 22 mega litres and are having only 12 mega litres.
Mr. Speaker Sir, given this time, I want to thank you for this opportunity to debate vociferously, effectively and efficiently on this report. I thank you – [Laughter.]-
THE HON. SPEAKER: Order, order can the Hon. Member be
heard in silence please.
HON. PHIRI: Thank you Mr. Speaker. I would like to thank the Committee that has brought this report, quite a good report. I would also like to thank all those who have spoken before me. Mine is going to be very short. I shall speak from the heart because what I am going to talk about here is what I have experienced for eight years when I was an executive mayor of the town of Kadoma.
What has been spoken here, I think is just a tip of the iceberg. It is true that Bulawayo had the best run council in this country. I know that because I was once the President of Urban Councils. We are missing the times of the old mayors of Bulawayo, like the late Naison Ndlovu. We are missing the likes of Siwela. We are missing the likes of Malinga and all those other former mayors. They ran that council quite well. Yes, there are some who came after, have done their best, but the report tells us a lot from 2009.
Councils need to be promoted. Councils need finance. Every one of us here and all those outside, even the President himself comes from a local authority. Every one of us here has taken a bath; every one of us here has visited the good room, every one of us here has taken a meal.
Everyone of us here has travelled on a road done by a local authority. So they need our support. But before we support them, they must put their systems in order. I do not understand when we talk of a local authority which is not reconciling its books every month then you say it was this and that. There is something wrong. When we hear of a local authority that tenders for an ambulance and at the end of the day, they do not get what they paid for, there is something wrong. It is so bad that we hear that a local authority is failing to pay its own workers. This is because there are no monthly reconciliations.
The Urban Councils Act is very clear on Section 285 on what should be done. Therefore, when a local authority fails to go by the law, then it is acting unlawfully and action should be taken. We cannot have somebody stealing from a local authority and at the end, you see him every day. There is something wrong.
I have said that local authorities are failing to pay their workers; worse still, they are failing to pay for pension for their workers that have retired. Right now, there are some people who are going after retiring and they have nothing. The workers go to the local authority’s pension fund to get their monies but the money is not there after someone has
Our problem is that our local authorities have become so politicized that the councillors are not making their own decisions. They end up at Harvest House for assistance - [HON. MEMBERS: Hear, hear.]- I want to repeat this. Can I say that again? - [HON.
MEMBERS: Yeees!]- Our problem is that our local authorities systems have been so politicized that the councillors are no longer taking their own decisions. They are taking decisions from their headquarters – Harvest House. As long as our local authorities take decisions from somewhere else, then we have a problem - party politics outside.
My last point Mr. Speaker Sir, I have said that local authorities need to be funded. They cannot operate on their own without funding from Government. Let us give the local authorities the money that has been promised to them. If at all there is not enough money, they should be given the little amount that is there. Yes, I know that in some local authorities, we have cities, towns, rural councils and so on. Most of our towns graduate from a local board to a town, to a municipality and to a city. The graduation goes with money. Our people are complaining that the status that some of the cities have taken – they are no longer cities. Some of them have turned into villages. People are paying rates that do not go along with their status. In some towns where they have got the city status, they are supposed to be paying rates but the rates are no longer rates because of the failure to sufficiently give the people water, good roads and so on. The cities have turned into local boards.
Therefore, these supposed cities should now be downgraded to towns so that people pay according to what they are getting. You cannot pay rates for a city when the status now is a village. I rest my case.
HON. P. D. SIBANDA: Thank you Hon. Speaker for giving me an opportunity to also debate on this important report that is seeing my colleagues to move out.
Hon. Speaker, it is important especially to speak immediately after a former executive mayor who used to report at Harvest House for decisions that he was making at Kadoma Municipality.
The importance of this report is that it exposes certain things that are happening in our governance, albeit at local level but the importance of this report is that it reveals what is happening at a sub-set of the total set. I believe that the local authority is merely a sub-set of the whole set. It is a reflection of what subsists in the whole set. I believe that local authorities are merely samples of the type and extend of governance that we have in the country. They reflect us. They reflect our systems as a country. Bulawayo City Council has been used only as an example but I believe that we can generalize the findings that are made against Bulawayo City Council in almost all local authorities and even we go up to the national level; to central governance.
Besides the figures that are coming out of this report, there are certain observations that we need to make as a country, have a serious introspection and chat a new way in which we have to deal with usage of public resources. The first observation that I am going to make is on the culture of entitlement that prevails in the country. The report indicates that there were employees of Bulawayo City Council that abused or did not use the resources of the local authority properly and no punishment was exerted on them.
If we look at that and let me take it at the set level; I talked of it as a sub-set but let me look at it at the set level or the national level. That spirit of entitlement where a person can willy-nilly do whatever they do which is criminal and still they go scot free is not only found at local authorities. It is there at national level as well.
Hon. Speaker, I have tried to look into the records and discovered that since 1980 when we became an independent country, there is no one in the Executive or in senior offices that has been either convicted or merely prosecuted for abuse of State resources – [HON. MEMBERS: Hear, hear.] – So, if this has been happening at national level, what would you expect at local level? The feeling is that if I as a parent in my family am misbehaving, I should not expect anything more from my little son or daughter. The level of misbehavior that I conduct is actually transmitted to my children. So, the behaviour that is seen in local authorities is a reflection of the entire behaviour of the central governance of this country.
Hon. Speaker, we are all aware like I indicated that in this country we have seen a lot of people that govern public resources being arrested and at times being released from police custody by powers that are supposed to protect the resources of this nation. I can speak of the Juma case of ZINARA, but I can also speak of the case of the Umguza RDC
Chief Executive Officer who Hon. Speaker, utilised public resources that were meant to make a road and that road was never made but the resources of the public were paid out. He was arrested, went to court but up to today, I think it is 4 or 5 years down the line, nothing has happened to that person, but he abused public resources. Even the court system can be jammed in this country in order to protect someone who is corrupt. So, when we see that happening in local authorities, as a nation we should not be surprised. Instead, we have to look at ourselves in the mirror and say where have we gone wrong and where do we have to rectify the situation that we have.
Let me give you an example Hon. Speaker, to show you that this Bulawayo City Council issue is not only applicable to Bulawayo; it actually cascades throughout the country. Last year on 8th February, 2016, I wrote a report to the Minister of – what do you call this Minister who is responsible for rural local authorities – [AN. HON. MEMBER: Ndizvozvo zvawataura.] – The Minister that is responsible for local authorities, this Minister response for heritage whatever, I cannot cite the ministry –
THE TEMPORARY SPEAKER (HON. MARUMAHOKO):
Order, he is an Hon. Minister not this Minister.
HON. P. D. SIBANDA: I am talking of the office not the individual Hon. Speaker. Anywhere the Hon. Minister responsible for Rural Development and Heritage, I cannot fully cite it. I took a letter to the Hon. Minister, indicating about specific areas of criminal activities that were taking place in a local authority where I highlighted a number of allegations that were coming out. I was requesting for an audit to be sent to check the books and check on the allegations that has been brought to me as a Member of Parliament.
Hon. Speaker, an audit team was sent and it verified the allegations, although I have not been favoured with the copy of the audit report, because the Hon. Minister feels that I should not be favoured with the report despite the fact that I am the complainant who went to alert him that there is corruption that is taking place at a local authority. In my view as a parliamentarian, when an Hon. Minister feels that I am not entitled to a copy of that report which I complained about, then it is a sign that the Hon. Minister is protecting corruption in a local authority.
THE TEMPORARY SPEAKER: Order Hon. Member, you
should know there are processes, if that report is not yet public, he cannot give it to you.
HON. P. D. SIBANDA: Hon. Speaker, I am not a member of the public. I am a Member of Parliament, besides, I am actually the complainant. I believe that in any set up, the essence of administrative justice is that if I come and report to you that there is a problem that is taking place, I should be entitled to a response. Let me say Hon. Minister, one of the allegations that I had laid in that report was that management of that local authority...
THE TEMPORARY SPEAKER: Hon. Speaker not Hon.
HON. P. D. SIBANDA: Hon. Speaker, one of the allegations that I had laid in that report was that managers of that local authority had gone to a bank in their personal capacities and borrowed money, thousands and thousands of United States dollars. The Chief Executive
Officer of that local authority instructed the Treasurer to pay using
Council resources; to pay back their personal loans, not Council loans. The audit report picked that up and to date, nothing has happened to those managers, including that CEO. So when we look at the Bulawayo City Council report. We should not be surprised, we should actually be able to reflect and say this is a sign of the culture of entitlement that we have adopted as a country and that we are running so hard with. We need to reflect on that Hon. Speaker and then say maybe it is time that we begin to stop. I am sure madam stop it should also say let us stop this spirit and culture of entitlement – [HON. MEMBERS: Hear, hear.]
Hon. Speaker, the other factor that I am seeing is that our system of supervising local authorities has been seriously corrupted and compromised. I think my colleague who was speaking was saying councils have become politicized, but I believe that it is the supervision of local authorities that have become seriously politicized. Let me dwell on this example that I have just given you. The CEO of that local authority is a Central Committee member, the Hon. Minister of Rural Development is a Central Committee member and therefore it appears there is nothing that the Hon. Minister can do to this person, that is politicization of administration structures of the State – [HON. MEMBERS: Hear, hear.] – and this is the kind of thing that is killing this country Hon. Speaker.
That is the kind of thing that is killing this country whilst everybody else is watching – [AN. HON. MEMBER: Just name them, name it is Binga RDC.] – It is Binga RDC. It has to be on record because my complaint to the Hon. Minister was on record.
The supervision of local authorities has become – [AN. HON.
MEMBER: Inaudible interjections.] – I am a former councilor myself Hon. Speaker and I really understand how politics has got itself into administration of councils, such that there is no longer any proper administration that is existing in councils. In council, management are running councils according to how related they are politically or otherwise with someone that is up there – [HON. MEMBERS: Hear, hear.] –
They feel that as long as they are politically well linked or politically well inclined, nothing will happen to them. I have given you an example besides Binga RDC, there is also the Umguza RDC where the CEO squandered millions of public funds and has been in court, the court system has been jammed, nothing is happening and then you begin to ask yourself where will we get to as a country if we allow millions and millions of dollars being taken away in that kind of a manner.
What it means is that even if I become CEO of a local authority tomorrow, what I will do is to try and link myself with the those that are in political offices so that then I can squander resources in any manner that I would like. The other thing is that as political parties, especially governing political party; it is sad that a governing political party at times will get down to local authorities and start to use assets of local authorities in a manner that is not prescribed by law. The moment we begin to do that, we create a culture where instead of proper administration of councils, councils will be managed in a manner that is corrupt and that is meant to squander and abuse public resources, because they will always shield themselves behind political power.
I believe that, that is one of the reasons why we are seeing these situations that we are seeing now. Above that, when we look at the 2013 Constitution, it creates an element of autonomous entities - on behalf of local authorities and provincial councils. I think this micro-management kind of thing, where we then want to buy loyalty and allegiance from officers that are in councils by Central Government is uncalled for. We do not need it. What is happening now is that everybody at local level has to give loyalty and allegiance to someone up there, especially in the Central Government; in Ministries so that whatever errands they make against public resources, they would be untouchable. So, we have got a lot of untouchables in this country.
If they are arrested – I wish I was Hon. Nduna. I think this yellow light would not have gone on. Mr. Speaker, what I am basically saying is that let us reflect as a country. I call upon my leaders that are here, that as a country at times let us be selfless and give it to the country and say that let us try to do the best for the generations that are yet to come. This scenario where when people are arrested by law enforcement agencies, we simply go and tell them to release them, that is uncalled for. That is the worst kind of scenario that we can do. The next thing that we are going to expect is that the police will no longer arrest people. Let us also stop interfering in the operations of the justice system. Let us leave the justice system, as independent as it is. Let us not jam the justice system because the moment we interfere in the operations of the courts, then we are creating that culture of entitlement in everyone in this country.
As long as people are linked politically to someone who is strong, they will abuse resources in this country as much as they like. There is no where we are going to get to as a country. We will continue to drown in these economic problems that we have as a result of culture of bad governance. Thank you Hon. Speaker for allowing me to speak.
HON. MATUKE: I move that the debate do now adjourn.
HON. RUNGANI: I second.
Motion put and agreed to.
Debate to resume: Wednesday, 14th June, 2017.
BUSINESS OF THE HOUSE
HON. MATUKE: I move that the House reverts to Order of the Day, Number 1.
HON. RUNGANI: I second.
Motion put and agreed to.
CONSTITUTION OF ZIMBABWE AMENDMENT (NO. 1) BILL
[H.B. 1, 2017]
First Order read: Second Reading: Constitution of Zimbabwe Amendment Bill [H. B. 1, 2017].
Question again proposed.
THE VICE PRESIDENT AND MINISTER OF JUSTICE, LEGAL AND PARLIAMENTARY AFFAIRS (HON.
MNANGAGWA): Mr. Speaker Sir, allow me at the outset to pay tribute to all the Hon. Members who have contributed to the debate generated by my Second Reading Speech on Constitutional Amendment Bill No. 1, 2017. I was encouraged by the application of their minds on the pros and cons of this Bill pertaining to the appointment procedure of the Chief Justice of the country in future. An extent which that will enhance the administration of justice and improve access to justice by our people and of course, the need to bring more clarity to Section 174 by providing an explicit provision to effect that the Labour Court and the Administrative Court are subordinate to the High Court.
Mr. Speaker, you may recall that in the second paragraph of my Second Reading Speech, I emphasised that the constitutional framework for judicial independence in any jurisdiction is paramount in determining the quality of justice delivery, access to justice and administration of justice. I also highlighted that these aspects are indeed intricately linked to the procedure of appointment of Heads of Judiciary and other Judges. Such appointments must be executed in a manner that does not compromise the constitutional, legislative, administrative values and etiquette expected of such crucial officials.
It is the procedure of these appointments which I firmly believe must be in tandem with international good practice and be subjected to proper administrative process, with no internal or external influence whatsoever. I went on to highlight that judicial independence can only be achieved when the constitutional bedrock on which such appointments are anchored is solid enough to arrest any mischief, perceptions and challenges that may arise in the administration of justice. This background is crucial, as it will be able to recall each and every one of us to order at any such time we will be tempted to be taken adrift by waves of our narrow partisan interests. Mr. Speaker, I have applied my mind on the contributions that were made by Hon. Members.
Such contributions will guide us during the amendment process.
I will start with findings and recommendations made by the Committee arising from the report presented by Hon. Ziyambi. The first item raised by the Committee is that the title of the Constitution itself must be amended from Constitutional Amendment No. 20 Act of 2013 to Constitution of Zimbabwe 2013 so that this Amendment Bill will lead to the enactment of Constitutional Amendment No. 1 Act. While there appears to be the general consensus that this amendment must be done, it should be borne in mind that the changing of the title is not just done that simply, as it involves another amendment process to be initiated; given that the title itself is part of the text of the Constitution and we can seldom trivialise the text simply because it is a title and seek to change it willy nilly.
In any event, I was wondering if there is any one among us who is uncertain and confused that this proposed amendment is to the Constitution that we all endorsed in 2013. To seek to amend the title of the Constitution in my view, will complicate the situation further. It is one’s conviction that this amendment is to the effective and operational Constitution that matters, and thus the proposal to amend the text expressing the title of the Constitution may not be taken aboard by this proposed amendment as it was never part of the principles which were part of the drafting instructions to our drafters.
Mr. Speaker, I am grateful that after the Committee’s findings, the Committee has also been able to analyse contributions by our citizens and have been guided by those contributions to arrive at certain conclusions that they have presented to us as their recommendations.
Mr. Speaker, I am amenable to be encouraged by the recommendations made by the Committee which has clearly supported the Bill we are debating today.
Firstly, on the proposed amendment of Section 174 of the Constitution by the addition of subsection 2 that explicitly subordinates the two courts to the High Court but maintains the quality of basic conditions of service between judges of the High Court and judges of the two subordinate Courts, the Committee has not grappled with that position and has swiftly recommended that we cause that amendment.
This sentiment also appears to be shared by the majority of other members.
In fact, the Committee went further to dismiss a minority suggestion that we amend the Acts which deal with establishment of respective courts and leave the Constitution. This clearly is an absurdity which flies in the face of settled legal principles that enabling Acts can only be enacted provided that their final scope, content and text is not at variance with the supreme law of the land. That said, it would be difficult to reflect a position in an Act of Parliament when the
Constitution itself has a glaring lacuna or gap. The first and imperative action is for the legislature to move in and correct that anormally. Surely, Parliament cannot shy away from its duties that are constitutionally conferred and authoritatively given to it by the people.
Mr. Speaker, pertaining to the appointment procedure under
Section 180 of the Constitution, items 5.5 and 5.6 of the Committee’s
Report unequivocally support the Amendment Bill and thus noted that:
‘...the responsibility of the judiciary to interpret the laws of the land must vest in individuals who are qualified, professionals, fit and proper and the proposed amendment does not seek to take away these cardinal baseline requirements,...’.
Further, the Committee also authoritatively agreed with the proposed amendment as it does not seek to erode the independence of Judiciary, given that provisions that insulate such independency as provided for in terms of Section 164 and 165 on Independence Judiciary and the principles guiding the Judiciary are not going to be tempered with at all except for the administrative aspects of the appointment procedure under Section 180, only pertaining to the appointment of the three heads of the judiciary that are inclined towards empowering the office of the sitting and outgoing Chief Justice to choose his or her successor at the expense of Judicial authority, that must be exercised by the people through their elected representatives.
The Committee persuasively advanced this notion as follows, “ the system of representative democracy which subsists in Zimbabwe is being negated by the current procedure which leaves the selection of such influential office bearers who define direction and policy of the country to unelected individuals. It is settled that judicial authority drives from the people, hence the need to change the status quo”.
I now turn to submissions by Hon. Gonese and I will lump my responses to his submissions together with those raised by Hon. P. D. Sibanda. Firstly, let me put it on record that this is not a self-serving amendment as these two Hon. Members have been at pains to portray. It is my firm belief and conviction that those who entertain such notions are not only mischievous and self-destructive to say the least, but dangerous, not only to our constitutional democracy but to themselves. It must be clear to them that I, as the Minister to whom the Justice, Legal and Parliamentary Affairs portfolio was assigned, have the unfettered mandate to propose amendments accordingly to the people’s wishes, the law and procedures available for the peace, order and good governance of the motherland. It is that duty which I credibly execute in a balanced manner, to the satisfaction of all our Zimbabwean people regardless of their political persuasions.
Hon. Gonese expressed his concern about the timing of brining this proposed amendment describing it as being too early. This sentiment is shared by Honourables Cross, Majome and Ndebele. The timing of bringing a proposal of an amendment to the Constitution can only be addressed by the Constitution itself. No constitutional provision prescribes or limits the time within which proposals to amend the Constitution must be tabled before this august House. The only direction we get from the Constitution pertains to the procedure that must be followed when amending the Constitution and this is set out in terms of Section 328 on amendment of Constitution. In terms of 328
(6), where a Constitutional Bill seeks to amend any provision of Chapter 4 on Declaration of Rights or Chapter 16 on Agricultural Land, it must be submitted to the referendum within three months after it has been passed by Parliament by the affirmative votes of two-thirds of the membership to each of the Houses of Parliament.
Thus, the restrictions have been placed in amending these two provisions in our Constitution not on the basis of time but procedure.
This is what we refer to as entrenchments. These entrenchments also apply to provisions relating to the amendment of term limits provisions and Section 328 itself; as prescribed by Section 328 (7) and (9) respectively. Section 328 (9) restricts the amendment of Section 328 itself, in case someone wants to amend the amendment clause first before attempting to amend other provisions.
The provisions from which this particular amendment proposal on appointment of judges arise, are not entrenched and thus are subject to amendments as long as the proper procedures are followed, and of course, when the rationale of the need of that amendment is found, either by the Government of the day or by any Member of Parliament, who would wish to sponsor a Private Bill. In this case, we are following the procedure prescribed in terms of Section 328 to the letter and spirit, and thus, no issues of constitutional ripeness or otherwise legally arise, particularly on the benchmark of time.
Mr. Speaker, now that we learn that there is no provision in our
Constitution that prescribes the time within which a constitutional amendment may be brought before this august House, one may want to learn from even our neighbour, South Africa which adopted their
Constitution in 1996 and started to be operational in 1997. The South
African Constitution came into effect on 4th February, 1997 and by 28th
August, 1997 barely seven months after the effective date, the late President Mandela was signing a constitutional amendment into law, with less than six months of it coming into effect. It made changes related to the Oath of Office of the Acting President and to the jurisdiction of the Truth and Reconciliation Commission, and also to the effect that the Chief Justice should designate another judge to administer the Oath of Office of the President or Acting President, rather than administering it personally.
As a comparative analysis, how do you reconcile the more than four years that our Constitution has been in effect and the less than seven months within which South Africans changed their Constitution? That notwithstanding, the South African people remain proud of their
Constitution even when it was changed within six months. I believe that other than some of our own such as Hon. Ndebele, whose pride as a Zimbabwean has been dented simply because we have proposed a constitutional amendment within four years.
Mr. Speaker, it arises from the above South African example that it is not true that a Constitution cannot be amended within four years as in our case, as long as that amendment is legally and procedurally executed as we hereby do. It is trite that while intended to be both foundational and enduring; constitutions are not intended to be immutable. In fact, if the Constitution is to endure, it must be able to respond to changing needs and circumstances. Some amendments are made for the public interests; or to adjust the Constitution to the environment within which the political system operates, including economics, technology, international relations, demographic and values. They can be changed to correct provisions that have proved inadequate over time, or to further improve constitutional rights or to strengthen democratic institutions.
In fact, the early writings of eminent thinkers such as John Locke in his seminal work ‘Treatise of Government’ and newfangled writers like Donald Lutz in his work ‘Towards a Theory of Constitutional
Amendment’, support the notion that if a population rested on popular consent, then the people can also revise, amend or replace it with a new one, equally on the basis of popular consent. This popular consent may be practiced through a convention, referendum or legislative process of a relatively bigger majority.
Mr. Speaker, while I was very excited and enthused by the level of debate directed towards this constitutional amendment, I was also discouraged by the level of misdirection of this august House by some Hon. Members who, at all cost, were desirous to discredit the fact that the appointment of the Chief Justice and Deputy Chief Justice through an interview process has no precedence. Hon. Gonese, in the last paragraph of his submission, wanted to enjoin Kenya as one such jurisdiction that subjects prospective candidates to the office of the Chief Justice to public interviews. Section 166 (1) of the Kenyan Constitution is relevant and clearly provides that:
‘The President shall appoint –
(a) The Chief Justice and Deputy Chief Justice in accordance with the recommendation of the JSC, and subject to the approval of the
Ntional Assembly’. There are no public interviews; and
‘(b) All other judges in accordance with the recommendation of the JSC’. There are no interviews.
So, that was misdirection by Hon. Gonese.
Surely, with the much touted Kenyan example having been used by the Hon. Members as a shining example of a jurisdiction that appoints its judicial officers through an interview process, and has now been discredited as an outright lie and misdirection of Hon. Members, we stick out as the only country which unprecedentedly appoints its Chief Justice and Deputy Chief Justice through a public interview process.
Mr. Speaker, allow me to also address the unwarranted fears that the Hon. Members appear to have been harbouring throughout the debate. The unwarranted fear that the appointment of the Chief Justice, Deputy Chief Justice and President of the High Court shall erode the independence of the judiciary and unsettle the separation of powers as was expressed by Hon. Ndebele, Chirisa and Hon. MisihairabwiMushonga. On this concern, it should be noted that judicial independence is a function of a number of inter-related elements other than the procedure of appointment alone, which procedure has not been done away with in the appointment of the whole bench, the rest of the judges still have to go through a process of interviews as in the current Constitution, but just three of the members of the judiciary, by virtue of it being a means of curing an administrative mischief that may potentially occur.
Fundamentally, the Constitution has other adequate mechanisms that guarantee judicial independence to advance and secure the integrity of the bench from all forms of interference. These range from their fitness and properness, their qualifications, integrity, probity, moral, character and impartiality; there are dismissal procedures and remuneration and those are the safeguards that safeguard the independence of the Judiciary. We must also remember that whilst we hold premium the principle of the independence of the judiciary, it should be noted that as an arm of Government, the Judiciary is an independent but interrelated and interdependence sphere of the Government machinery that can only survive when it interlocks with other organs through the lenses of an equally celebrated principle of checks and balances. Surely, the Judiciary cannot exist in an island or in a vacuum because if that notion of its existence as a vacuum was true, surely the President would not be even allowed to play even a single role in the appointment process as is the case across jurisdictions worldwide.
Mr. Speaker, then comes the issue of the people as the source of the Judicial authority. The notion that Judicial authority derives from the people is not an immaterial proposition but a fundamental one that is rooted in the subterranean layers of our electoral mandate. Democracy itself is embedded in the popular views of the masses at any given time. When we say certain provisions of the Constitution have outlived their usefulness and should be reviewed, it means that the popular will of the greatest number share that view. It is that view that must be debated and if it steals the thunder, it is the one that must be adopted.
However, those popular views must be debated, tested and interrogated, following the constitutional and legislative procedures in place and that is what we are doing in this august House. In any event, it is a good and longstanding practice even in well established democracies to include the elected representatives of the people in the judicial appointment process. In Kenya, they involve both their President and the National Assembly – not the interviews as previously debated. In South Africa, it is the President and the National Assembly; and in America, it is the President and the Senate. It is only in Zimbabwe that the President is involved after the public interviews which we are now removing.
Mr. Speaker, it is against this backdrop that we propose this constitutional amendment especially if regard had to be heard to the invidious position that it leaves our judicial officers in. Does it not naturally make sense that an outgoing Chief Justice cannot chair interviews for his or her potential successor? The reason is simple as it is predicated upon a possible conflict of interest, which mitigates on the principles of good governance and transparency of the whole appointment process leading to the contamination of the bench and subsequent compromise the administration of justice. However, the President in compliance of the current Constitution before this amendment went ahead and appointed a new Chief Justice in terms of the current Constitution which is the law until it is amended. That is the rule of law.
Mr. Speaker Sir, I also wish to highlight that it is not right to hold the notion that there are other pressing issues that should take precedent ahead of the imperative need of addressing gaps in our Constitution; as Hon. Ndebele clearly said in the closing remarks of his submissions before he quoted the late nationalist and legal icon, E.J.M. Zvobgo. Is the Hon. Member insinuating that the Constitution is immaterial to the extent that we must ignore it up until a time when our economic fortunes have improved? We must surely be guided by former South African Chief Justice, Ishmael Mohamed who emphasised the importance of the
Constitution when he said: “The Constitution of a nation is not simply a statute, it is a mirror of the national soul, the identification of the ideals and aspirations of a nation, the articulation of the values binding its people and disciplining its government”.
Do we need a mirror of the national soul that is broken? Do we need the identification of the ideals and aspirations of our nation to be in tatters? Do we want the articulation of the values binding our people and disciplining our Government to be on a blighted and shaky constitutional framework – no? Interestingly enough yet paradoxical, Hon. Ndebele put his lessons at the University of Zimbabwe Law School into practical use by branding our Constitution sui generis, which means in a class of its own. I hear he is a freshman at the University of Zimbabwe but deliberately refrained from reasoning that a Constitution with gaps and provisions such as Section 180 can hardly be described as sui generis. Surely, the Eighth Parliament cannot go down in history as a Parliament that jettisoned its mandate of making laws for the peace, order and good governance of its nation and leave it all to the courts to grapple with the jurisprudence of interpreting and assigning meaning to half baked provisions. We make laws as Parliament; the Judiciary interprets that law and the Executive implements and enforces that law.
Mr. Speaker, it is disturbing to note that some Hon. Members such as Hon. Cross and Chirisa prefer to align the legislation to the Constitution first before amending it, even if it has glaring lacunae or gaps. Surely, this becomes a case of the proverbial cart before the horse maxim. You can only align legislation to a Constitution with watertight and robust provisions. A flawed constitutional framework means a weak legislative framework and consequently a society not found on justice, law and order. Your guess of the by-products of such a society are as good as mine. Surely, that is not the kind of society that we yearn for here in Zimbabwe.
Mr. Speaker, let me also turn to those who wanted to advance the notion that this is a partisan amendment. While Hon. Members
Mukwena, Nduna, Katsiru and Matambanadzo supported the Bill, I feel that they went too far to make it like the amendment is a party amendment simply because the party which also proudly supports and whose people I humbly subordinate myself to wishes to sponsor it and by virtue of that, it shall come to pass. This amendment is an apolitical centered amendment that is found on the notion that for the administration of justice to be smooth, it must be predicated upon an independent appointment process, insulated from potential internal influence of its senior officials.
However, I wish to pay tribute to Hon. Mukwena, Hon. Katsiru,
Hon. Matambanadzo, Hon. Phiri, Hon. Chakona, Hon. Mandipaka and Hon. Nduna for their emphasising the importance of enjoining the source from which judicial authority is derived in the appointment of senior judicial officers: the people through their popularly elected representatives, the appointment must be done by an official from a different arm of Government, which official has the authority of the masses from which judicial authority is derived - who is the President.
Even Hon. Maridadi was close to endorsing this notion, albeit vicariously, by referring to the role the Presidency plays in making the constitutional making process succeed, and by extension, the role the presidency can play in making the judiciary work through appointments. Unfortunately, he could not afford to be too clear for fear of reprisals from his party colleagues.
Mr. Speaker, there was raised concern that this Bill did not get support from Cabinet as evidenced by sentiments expressed by other Cabinet Members through the media. I surely do not find that to be an issue that stops this amendment process as disagreements will always be part of our deep seated democratic principles. Just like here in Parliament, we are witnessing divergent views on one issue and if that happens in here, what is irregular in that happening in Cabinet especially in view of the democratic mechanisms in place to ensure that the voice of the majority wins the day. After all, there is a long standing tradition of ‘Cabinet collective responsibility’ that dictates that even when a Cabinet Member does not agree with the majority decision, it is either that they are bound by that decision or they resign.
The fact that we have not seen any resignation arising from the successful endorsement of this Bill by Cabinet is eloquent testimony that the Bill has full backing of Government and the final arbiters, the people, through their elected representatives who will have the final say on the Bill. Mr. Speaker, that said, I now propose that the Constitution of Zimbabwe Amendment (No. 1) Bill [H.B. 1, 2017] be now read a second time.
Motion put and agreed to.
Bill read a second time.
Committee Stage: Wednesday, 14th June, 2017.
BUSINESS OF THE HOUSE
HON. MATUKE: Mr. Speaker Sir, I move that Order of the Day, Number 2 be stood over until Order of the Day, Number 3 has been disposed of.
HON. MUKWANGWARIWA: I second.
Motion put and agreed to.
NATIONAL PEACE AND RECONCILIATION COMMISSION BILL
[H.B. 2, 2017]
Third Order read: Adjourned debate on motion on the Second Reading of the National Peace and Reconciliation Commission Bill, (H. B. 2, 2017].
Question again proposed.
THE VICE PRESIDENT AND MINISTER OF NATIONAL
HEALING, PEACE AND RECONCILIATION (HON. MPHOKO):
Thank you Mr. Speaker Sir. I want to thank the Portfolio Committee on Justice, Legal and Parliamentary Affairs and the Thematic Committees on Human Rights and Peace and Security on their report on the National Peace and Reconciliation Commission (NPRC) Bill, B. H. 2, 2017. I also want to thank all Hon. Members for their support especially those involved in public consultations. May I also take this opportunity to thank the Hon. Members who have made contributions to this debate.
I note as highlighted in the conclusion of the report that the Bill did not receive general public acceptance. I would therefore like to make comments and clarification in relation to the issues in the report and from contributions made by Hon. Members.
Let me start by pointing out that this Bill aims to operationalise National Peace and Reconciliation Commission (NPRC), which was established by Section 251/253 of the Constitution of Zimbabwe.
Section 252 of the Constitution clearly states the functions that the NPRC must implement in order to fulfil its mandate. How the NPRC will implement the listed ten functions is up to the Commission as it is independent to decide how to embark on its work. The Executive cannot therefore prescribe how the Commission should implement these functions.
Whilst we are all trying to figure out what exactly the Commission will be working on and we are even giving suggestions as to what it should look into, it is best that we leave the Independent Commission to decide how it will implement its functions. The Bill is only giving the principles of operationalising the Commission as we all want it to start work yesterday. The aim of the Executive is therefore not to prescribe to the Commission how it should conduct its work, but to give the principles that will guide the NPRC in the fulfilment of its mandate.
The modalities of how the NPRC will be operating as it implements its functions will be given in the regulations for the Bill when it becomes an Act. These regulations will be tabled in this august House for your approval.
Hon. Members, allow me to respond to some of the issues raised for example, the delay in tabling revised the National Peace and Reconciliation Commission Bill. The response is that after the withdrawal of the NPRC Bill in May 2016, several versions were worked on trying to incorporate the issues that had been highlighted in the adverse report of the Parliamentary Legal Committee and also by the public from the hearings conducted by the relevant Portfolio Committees. The Bill was also subjected to stakeholder consultations and it was pointed out that stakeholders appreciated the process. The draft that came from this process was then presented to the Cabinet Committee on Legislation and later to Cabinet. The Bill had to follow the due process to ensure that it had incorporated the views gathered. The Bill that was finally presented to Parliament for gazetting thus received a non-adverse report from the PLC.
The fact that the first Bill received an adverse report and that the views from the public were also condemning the Bill, called for extra effort to be put in crafting of the Second Bill before the tabling of the Bill before this august House.
The long title is not expressing the purpose of the NPRC Bill and what it intends to achieve.
- The long title of the Bill is in consonance with the contents of the Bill. The purpose of the Commission is laid out in terms of the Constitution. Thus, the major purpose of this Bill before the House is to make the Commission operational.
- The purpose of the Bill is as stated in the Constitution and the
Bill cannot therefore give a different purpose Clause 2 Interpretation Issue:
Major terms used in a conflict situation were not defined. Words like victim, conflict, dispute, amnesty, perpetrator, post conflict justice, torture and reconciliation.
- The purpose of the interpretation section is to interpret words used in the Bill. The Constitution is the basis of the Bill and some of the cited words have not been used throughout the Bill. Unless such words have been used, that is when they maybe defined. Where the Constitution has used the words and did not define them, then defining them in the Bill runs the risk of limiting the constitutional intended meaning.
- The purpose of the interpretation section is not to give the dictionary meaning of the terms used. One of the purposes of the interpretation section is to shorten the text of the Bill. One such definition is that of ‘Minister’. If the Minister has not been defined, it has the effect that every time the Bill seeks to make a reference to the Minister, the Bill would have to cite the Ministry for the Minister. This will lengthen the text of the Bill. The word ‘dispute’ has been defined not in a dictionary fashion, but only to ensure that the Commission will handle the dispute which is within its constitutional mandate. This has been done to ensure that the Bill is not in conflict with the Constitution. Clause 3: Procedure Powers and Functions of the Commission
The Bill failed to categorise, list and define functions of the Commission, its powers, procedures for handling complaints up to the stage of acquittal or conviction and conditions for granting amnesty.
- The Constitution lays out the functions of the NPRC in Section 252 of the Constitution. For purposes of drafting an Act of Parliament, it is contrary to guidelines of drafting legislation to repeat the same functions. The Bill can only provide for additional functions which have not been covered by the Constitution.
- According to Section 34 (2) of the Constitution, the NPRC as an independent Commission, is given all the powers necessary to enable it to fulfil all its functions including healing and reconciliation. Some issues are therefore left entirely to the discretion of the Commission.
- The procedure for handling complaints up to the determination of granting amnesty (pardon as stated in the Constitution) will be provided for by the Regulations in terms of Clause 19 (2) (e) of the Bill, as the Bill is only highlighting principles.
Clause 6: Offices and Operations of Commission Issues:
The NRPC should decentralise offices to remote areas to ensure equal access to justice by all.
- As an independent Commission, the NPRC is empowered to establish offices where it feels necessary in terms of Clause 6 (1) of the Bill. Further, the Commission is obliged to ensure accessibility of its offices in terms of Clause 6 (2). Thus, decentralisation is one of the strategies of achieving accessibility.
Clause 8: Investigating Functions of the Commission
- Clause 8 (1): Disputes or issues to be investigated by the Commission should be described in detail so that functions of the Constitution are transparent and clear to all.
- Functions of the NPRC must be clearly demarcated from those of the Zimbabwe Human Rights Commission (ZHRC).
- Clause 8 (3): Due court processed under civil proceedings were acknowledged, but those under criminal proceedings were negated, meaning that the Commission can investigate matters before criminal courts.
- In Clause 8 (1), the Commission is empowered to deal with any type of dispute or conflict brought before it. The Constitution did not define the scope of the dispute or conflict to be adjudicated by the Commission. Defining the scope of this dispute may have the effect of limiting the dispute. Limiting the scope of the dispute or conflict may deny the citizens of their fundamental constitutional right to have the processes of healing and reconciliation.
- The function of the ZHRC and the NPRC are clearly laid out in the Constitution, according to Section 243 and 252 respectively. What the Bill stated are the additional functions that the NPRC should implement.
- The issue of citing matters before the civil court only is noted.
At the Committee Stage Clause 8 (3) will be amended to ensure that the Commission will not deal with matters which are before both the civil and criminal courts.
Clause 13: Staff of Commission Issue:
What role does the Minister play in the setting up of the
- The NPRC will come up with its own organogram, based on the activities it will want to implement. For the NPRC to be able to recruit its own staff, the Minister and the Minister of Finance and Economic Development have to be consulted for purposes of budgetary issues since all commissions are vote supported by their respective parent ministries. This is administratively upright.
On the issue of gender, the Bill is silent on gender and there should be a specific gender section.
- The NPRC is an independent Commission which has powers to set up units or Committees that will enable it to properly function in the implementation of its mandate - as stated in the first schedule, paragraph 8 (1). The Executive cannot therefore prescribe the units or Committees that the NPRC can set up; for example gender unit as that will be infringing on the independence of the Commission.
However, it should be noted that the primary purpose of the Commission is to facilitate healing and reconciliation among feuding parties. How it does that is the prerogative of the Commission.
- In terms of Clause 19 (2)(b) of the Bill, the Commission is empowered to create committees as it thinks fit. Thus, the Commission may create a Gender Unit and other Committees for identified disadvantaged members of society using this provision.
- In terms of Paragraph 1 of the First Schedule, Members of the Commission should be drawn from all genders as provided for in terms of Section 17 of the Constitution. This is one of the best strategies of achieving gender quality.
Defining one as perpetrator of victim
The Bill is silent on procedures for ascertaining one’s status as perpetrator and/or victim.
- The Commission will provide the procedures in the regulations.
CONCERNS RAISED BY HONOURABLE MEMBERS OF
The Bill does not tell us why we need to have this Commission, what the motivation is or the history of our country which led to the inclusion of the Commission in the Constitution.
- The purpose of the Bill is to operationalise the Commission which was established by the Constitution. Outlining the history of the country should have been relevant if the Bill was creating a new creature not provided for in the Constitution. The history can only be relevant for purposes of establishing the Commission. This Bill is not establishing the Commission but the Commission is established in terms of the Constitution.
Repetition of the same words in Clauses 10 and 11 and also First
Schedule paragraphs 2 (1) and 2 (4).
- From the concerns raised by Hon. Gonese about the provisions which he alleges were repeated in Clauses 10 and 11, a closer analysis of the provisions outlined reveals that the provisions refer to different contexts that is […answer may incriminate him or her Clause 10 (2) and
…. answer may incriminate someone (Clause 11 (2)]
This also applies to the First Schedule Paragraph 2 (1) and 2 (4) on the term of office for Members of the Commission which is cited according to Sections 320 and 340 of the Constitution.
- In drafting, it is encouraged to use same words when you are creating provisions which are closer contextually. Different words can only be used when denoting different meaning. Thus, since the meaning has to be maintained with different contexts, similar words had to be used.
The need to replace the NPRC Chairman after the death of the late
Dr. Cyril Ndebele.
- The Executive remains committed to ensuring that the NPRC operates with its full complement of Commissioners and is pre-occupied with the matter.
Issue (Also raised by Hon. Majome)
The Bill does not state how truth telling and justice will be addressed.
- In terms of Clause 9 (11)(b) of the Bill, it is an offence to give false information before the Commission and this encourages truth telling. Further, Clause 10 (3) creates an incentive for truth telling by making self incriminating evidence inadmissible before any competent court.
- As truth telling and justice are part of the functions of the
Commission as stated in Section 252 (a) and (c) of the Constitution, the modalities of how truth telling and justice will be addressed are left to the Commission to work out. These will be laid out in the regulations that will be laid before this august House.
How will information be archived and will the public have access to the Commission information.
- The archiving of information is an administrative issue guided by Government regulations.
- In terms of Section 62 of the Constitution, every person has a right to access information held by the State or by any institution or agency of Government. In terms of Section 62 (4) of the Constitution, a law may restrict access to information in the interest of defence, public security or professional confidentiality. According to Clause 15 (8) of the Bill, whilst it grants access to the public 18 months after the year to which the information relates, it means that this upholds a person’s right to access the information, albeit in a restricted manner. This period will allow for finalisation of the Commission’s investigations.
There is no guarantee that witnesses will be protected during the process that is before, during and after giving evidence.
- According to Clause 9 (12) of the Bill, the protection of witnesses is guaranteed. The modalities of how this protection will be granted is left to the discretion of the Commission as it has powers to decide how to implement its work.
The Bill did not capture the gender dimension of conflicts.
- According to Clause 15 (6) (d) of the Bill, the Commission is expected to come up with a comprehensive strategy for incorporating a gender perspective in conflict prevention, management and resolution and peace building measures.
Issue: (also raised by Hon. Majome and Hon. Saruwaka)
The NPRC was given a lifespan of 10 years in the Constitution and has already lost 4 years, how will the lost years be incorporated.
- The counting for the lifespan for the Commission started in August, 2013 that is, after the effective date and the Constitution will operate for 10 years. As to the incorporation of the lost years, we stand guided by the custodian of the Constitution as to how this issue will be addressed. Extending the lifespan of the Commission beyond 2023 in the absence of a constitutional amendment would be unconstitutional.
Issue: What mechanisms will be put in place for reparations?
- According to Clause 19 (2)(d) of the Bill, the NPRC will come up with mechanisms to deal with the implementation of its functions as provided for in Section 252 of the Constitution. The mechanisms will also lay out the procedures for consideration of reparations. Before the regulations of the Commission come into effect,
Parliament will have to approve them in terms of Clause 19 (4) of the Bill. This ensures independence of the Commission.
Guarantee of non-recurrence of atrocities was not incorporated in the Bill.
- As part of implementing its functions, the Commission will come up modalities of guaranteeing a non-recurrence of the atrocities. In any event, it is very difficult not possible, to legislate for the guaranteeing of non-recurrence of a conflict in any country as the issue depends on people’s attitudes towards the resolution of conflicts.
Commission should have power to initiate its own investigations.
- The Commission has a given lifespan of 10 years which has to be utilised to implement the laid out functions in the Constitution. Giving the Commission powers to initiate its own investigations which have not been reported to, it may lead the NPRC on a fishing expedition which might result in wastage of resources and not yield the intended results. The Commission should therefore be guided in its operations by what is in the Constitution.
- It should also be noted that there are 10 functions that the NPRC has to fulfill. The Commission is therefore not being operationalised to conduct investigations only but it even needs to “develop and implement programmes to promote national healing, unity and cohesion in Zimbabwe and the peaceful resolution of disputes” amongst other functions.
The Bill did not mention the kind of violations that the
Commission will deal with.
- According to Clause 3 (2) (a) of the Bill, the Commission will conduct investigations into any dispute or conflict which falls within its mandate as set out in Section 252 of the Constitution. Listing the violations to investigate will limit what the Constitution has prescribed. The Executive cannot therefore prescribe the type of violations that the Commission should deal with as the Commission is guided by the Constitution.
There should have been wider consultation on the Bill not just in the 10 provinces.
- The consultations are part of the Parliamentary processes and the Executive has no say in it. This issue is best addressed by Parliament.
Bill should set up a Victims’ Fund for rehabilitation and compensation support for victims.
- The decision to set up a Victims’ Fund is the prerogative of the Commission which is best placed to decide how it intends to implement its functions. According to Clause 16 (1) (c) of the Bill, the Commission is empowered to get donations which it can use for purposes of the Victims’ Fund, if it deems fit.
The NPRC should not include members from security sector as part of the Commissioners and its secretariat.
- Commissioners for the NPRC were interviewed by the Standing Rules and Orders Committee of Parliament and I believe they made their due diligence. As for the Secretariat, the Commission will recruit its own staff and they are best suited to determine the type of staff they want to engage.
The Bill falls short of the UN five principles of the right to:
knowing what happened, justice, compensation, non-recurrence and written record.
- The UN principles are fused in the 10 functions of the
Commission as listed in Section 252 of the Constitution. As the Commission implements its functions, it will also adhere to and incorporate the UN principles.
- Further, the public will be afforded an opportunity of knowing what happened as the public will be allowed to attend hearings subject to the provisions of Clause 9 (6) of the Bill. The public will also be able to get information of the proceedings subject to provisions of Clause 15 (8) of the Bill.
- On the issue of justice, it is the primary responsibility of the Commission to discharge its duties without fear or favour. This is critical in bringing justice to the public. A closer analysis of the provisions will reveal that there is justice in the hearing of the matters. Reference is made to the provisions of Clauses 9 -11 of the Bill. For example, every party will be entitled to have a lawyer of his/her own choice as in Clause 9 (4) of the Bill. No person will be forced to testify against himself or herself, as in Clause 10 (3) of the Bill and this is a key component in the criminal justice system.
- The other two principles of non-recurrence and compensation have been dealt with.
In the Second Schedule of the Bill, paragraphs 10, 11, 12, 13 and
16 provide for the NPRC to provide for loans to its members and staff. This provision should be scratched as NPRC only has a lifespan of ten years.
- Whilst it is true that the NPRC only has a life span of ten years, the laid out conditions in the stated paragraphs are meant to motivate the members and staff of the Commission. It should also be noted that these conditions are the same with other independent Commissions and leaving them out for the NPRC might have created discord and discontent among the Commissions. Paragraph 15 of the Second Schedule provides for the safety nets for guaranteeing loan repayments.
It is my wish that Honourable Members understand that we cannot list or have everything we want addressed in the Bill but that some of the issues are left entirely to the discretion of the independent Commission.
Let us therefore understand that the NPRC is a national Commission that has powers to look into all national issues, not just Gukurahundi, Entumbane, Murambatsvina and Electoral Violence amongst others, that affected, are affecting and will affect the nation in future. It is my hope that by looking at our past, the Commission will assist us to understand the present and build a peaceful future.
Mr. Speaker, I now commend the NPRC Bill [H. B. 2, 2017] to the
House and move that the Bill be now read a Second time. I thank you.
Mr. Speaker, I have an issue, if you can allow me. Let me take advantage of my standing here and correct certain perceptions on the Commission, especially the issue on certain people. Mr. Speaker Sir, the issue of corruption is not the prerogative of the Opposition Party or anybody, especially opposition. It is a concern of everybody, including some of us. I say with pride, I am not a corrupt man and I will never be. In the first place, my occupation Mr. Speaker, if I drop dead now – Ooh by the way, I turned 77, Gonese where were you? – [Laughter.] – [HON.
GONESE: You are out of order Mr. Vice President.] – Hayi mani kangifuni, I want to share please.
THE TEMPORARY SPEAKER: Order Hon. Vice President.
THE VICE PRESIDENT AND MINISTER OF NATIONAL HEALING, PEACE AND RECONCILIATION (HON. MPOKO):
Mr. Speaker, special favour.
THE TEMPORARY SPEAKER: Order. I am bound by the
regulation, I am afraid. Thank you.
Motion put and agreed to.
Bill read a Second time.
Committee Stage: Wednesday, 14th June, 2017.
On the motion of HON. MATUKE, seconded by HON.
RUNGANI, the House adjourned at a Half past Five o’clock p.m.